Exclusive: Seven Questions for Alan Dershowitz

 Exclusive: Seven Questions for Alan Dershowitz

Why you should care

Because one of the moust famous legal minds on the planet can shed some light.

Michael Brown was not Trayvon Martin. So says Alan Dershowitz, a well-known liberal and a criminal defense lawyer most famous for defending Mike Tyson, Patty Hearst, and O.J. Simpson. The now retired Harvard Law Professor, reached by phone on the heels of the news that police officer Darren Wilson will not be indicted on any charges in the killing of unarmed 18-year-old Michael Brown, told OZY that the whole mess needed a dose of nuance. Or, as some might call it, legalistic hedging.

Even those with short attention spans probably remember the slew of other white cop vs. unarmed black teenager tales that have inundated the country this year: Trayvon Martin, Vonderrit Myers. Still others will remember the riots that engulfed Los Angeles in the 1990s after police officers beat 26-year-old Rodney King. When we asked Dershowitz to compare the stories so many of us have linked up naturally, he warned us against the parallel. And as for the specifics of this time? They did the right thing, he says — but that doesn’t mean police departments across the country don’t need to make a lot of changes. But the New York based attorney tells us it’s not just the law or even cops who should shoulder the culpability. It’s the media, too, he says, for not getting the right story out.

What’s next? Dershowitz has a guess there, too. His hope: police departments clean up, Tasers save us all, and we all review on our probable cause.

OZY: What happened here?

Dershowitz: There are three distinct issues. No. 1, is there a problem between police departments around the country and the black community? Is there too much shooting of young black men? The answer to that is clearly yes, we have a general problem that we have to deal with.

Second, did the grand jury come to the right decision about this particular case? Totally different issue. And I think the answer to that is that there are two distinct shootings. One, the shooting that occurred when Brown was very close to the officer, right outside of the car. And the answer to that is crystal clear, that was a proper shooting. The second question is, when he walked away and was at a distance from the officer, was that a proper shooting? And that’s a much closer question about which reasonable people could disagree.

But I think the grand jury and the prosecutor asked the right question. Meaning, the question shouldn’t be, “Is there minimal probable cause here?” — as there would be, for example, just to stop somebody or search somebody — but, “Is there enough evidence to warrant a conviction? Would a reasonable jury convict in this case?”

And I think the answer to that is: probably not. So that even if he had been indicted, there is a very, very high likelihood that he would have been acquitted by a petty jury. And the vast majority of prosecutors around the country do not indict unless they think they can win a conviction.

So I think on balance it was a close case, but they probably arrived at the right decision.

OZY: Why was it a close case?

Dershowitz: Based on the facts and the second shooting. The police officer probably had the option of going back in his car, calling for help and arresting him without shooting him.

Now, the big picture here is that the police should have had nonlethal weapons available to him. This was a perfect case where a nonlethal weapon could have stopped him from charging the officer without resulting in his death. A Taser, a stun gun, anything that is nonlethal. Even rubber bullets, which are more lethal, but not as lethal as a regular bullet. There’s much the police can do to prevent a recurrence of this.

OZY: How does this case compare to other cases, like Rodney King and Trayvon Martin?

Dershowitz: King, that’s not even a close case. Rodney King, of course, was beaten up without any just cause at all. But this case is a closer case than the Trayvon Martin-[George] Zimmerman case. That wasn’t even a close case. That never should have been indicted, and the jury in that case was 100 percent right.

Now some prosecutors do [indict when they don’t think they can get a conviction] — bad ones. The prosecutor in the Trayvon Martin-Zimmerman case made a terrible mistake. She indicted. It was a foregone conclusion that there would be an acquittal in that case. There never should have been an indictment in that case. This is a much closer case than the Trayvon Martin case. But don’t use Trayvon Martin as an example of good prosecution. That was a dreadful mistake to prosecute in that case.

OZY: What about the media’s role here?

Dershowitz: So when you see people on television … misinforming the public and whooping them up into a frenzy … saying that all you need is the lowest, lowest, minimum standard of probable cause — that’s just misinforming the public. That’s not the way prosecutors operate, particularly in cases like this.

OZY: What happens now to Wilson?

Dershowitz: He’ll be civilly sued. I think his criminal problems are over. I don’t think he will be prosecuted by the federal government. I don’t think they’ll indict him after the state refused to indict him. That would not be a proper exercise of discretion.

OZY: Are the police cracking down too hard on protesters?

Dershowitz: I don’t think so. I think that there were calls for violence and incitement and burning. I think that the police, from what I saw, responded appropriately. I think the blame lies with some of the leaders. But I think the blame lies with [the media] for misinforming the public about the law and in that way indirectly inciting civil disobedience violence.

OZY: Looking forward, do you see policy changes coming down the line?

Dershowitz: I would hope so, I would hope for more nonlethal weapons and better training for the police.



Interviews, op-eds, and analysis to help you make sense of the news of the day and the news of the future.